Jacob, a male Malawian national and Ayanda a South African female citizen have been staying together in a romantic relationship for almost 10 years. They have a 9 year old child who is attending primary school. Jacob’s uncles then came to South Africa in January 2020 and went to Ayanda’s parents’ home to negotiate lobola, to which an agreement was reached and Jacob’s uncles paid all the lobola on the following day and the two families slaughtered a goat and celebrated though both Jacob and Ayanda could not be there as they were working in Pretoria where they work and stay. Ayanda, on her own volition then moved in with Jacob the next day after lobola was paid. The uncles returned to Malawi, Ayanda and Jacob and their daughter have been staying together as a family. Jacob now wants to apply for a spousal permit to work.
A spousal VISA is issued to a foreign national who is
legally married to a South African citizen or a Permanent Residence holder upon application where all requirements are met. The question is, are Ayanda and Jacob legally married for Jacob to qualify for a spousal VISA? The. Customary m answer is NO, there is no valid marriage. Customary marriages are recognised in South Africa as per the Recognition of Customary Marriages Act of 120 of 1998, as long as it can be proven that traditional marriage rites and procedures were followed. It is not enough to pay all of the lobola amount for a marriage to be deemed as complete.
A form of celebration and handing over of the bride to the family of the bridegroom is required to conclude that a marriage had been validly secured under customary law. In this case, Ayanda was not handed over as she was in Pretoria working on the day the lobola was done. In a recent court judgment, it was ruled that the handing over may be deemed to be done if there is proof of the bride’s family having gave some form of blessing or go ahead for the bride to move in and stay with the groom. This did not happen as Ayanda moved in at her own volition, meaning she was not handed over by her family to Jacob to show their acknowledgement and recognition of the marriage. So to say, there is no valid marriage between Jacob and Ayanda.
The courts however, have discretion to depart from this conclusion. Further, the customary marriage must be registered at the Home Affairs within 3 months from date of conclusion of the marriage, had it been valid. Non-registration however, cannot be used to invalidate a customary marriage when all other requirements are met. Lastly, a spousal VISA does not automatically entitile the holder to work, unless a special endorsement upon application has been asked and granted to specifically authorise the holder to work.
Jacob and Ayanda separate after a year, Ayanda then takes the matter to court to ask for spousal maintenance for herself and child maintenance monthly for the child. Are they entitled to maintenance?
For Ayanda to qualify for spousal maintenance, she must be a spouse first. As advised above, there is no valid marriage between her and Jacob, so she cannot be successful in a claim for spousal maintenance. Had there been a valid marriage, section 7(2) of the Divorce Act 70 of 1979 would apply where questions would be asked to help the Court make a decision. These questions relate to Ayanda’s age, likelihood of employment, her contribution to the breakdown of the marriage, her monthly expenses, Jacob’s capacity to pay the asked amount, the couple’s lifestyle before the separation and Ayanda’s prospects of remarriage to another party.
The child qualifies for child maintenance automatically as long as it is proven or admitted that she/he is the biological child of Jacob, that she/he is not yet self supporting and that the child is still a minor hence an adult custodian must bring the application on behalf of the child.
Jacob passes away after 3 years. Who is entitled to inherit his estate?
Ayanda is not a spouse and therefore cannot inherit Jacob’s estate. Had she been a spouse she would get half of the estate plus a child’s share as customary are deemed to be in community of property unless an Antenuptial contract is entered into. This child’s share is divided by the number of children plus the number of spouses. However, since she is not a spouse, only Jacob’s descendents ill inherit meaning the child will inherit. If Jacob had other biological children, they too can contact the executor of the estate and register their claims then the estate will be divided amongst the proven descendants of Jacob.
What could Jacob and Ayanda do to validate their marriage so that Jacob can get a spousal permit and work at the same time?
Firstly Jacob and Ayanda would have to organise that Ayanda is handed over physically to Jacob or his family, or at least an evident acknowledgement that Ayanda’s family is recognising the marriage and blessing her to be a spouse to Jacob and stay with him. Secondly, they would have to register the marriage with Home Affairs within 90 days from date of handing over, though failure to do this cannot be a ground to invalidate the marriage when all other requirements are met. Lastly, Jacob must legally be in South Africa meaning if he was illegal at the time of marriage then no marriage will be recognised unless the Court finds that serious miscarriage of justice will be arrived at should this requirement not be departed from.
